__________________The real evil is not the payment of money, but the secrecy attending it (Chitty L.J. in the case of Shipway v Broadwood [1899] 1 QB 369, 373). .

The courts shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner

Moneylending transactions as a class give rise to significant social problems.

The European Court of Human Rights has held that where a local authority obtained a possession order against a former joint secure tenant following termination of the tenancy by notice to quit served by the other joint tenant, there was a breach of Art.8 (right to respect for the home). The applicant’s eviction was not attended by the necessary procedural safeguards in that there was no possibility of an independent tribunal determining whether the interference with his right was proportionate.

Facts
In 1998, Birmingham CC granted the applicant and his wife a joint secure tenancy of a three-bedroom house. In 2001, their marriage broke down. The wife left the family home with their two children. She then obtained a non-molestation order against the applicant and an ouster requiring him to leave the house. The wife moved back into the house but moved out again when the applicant tried to force his way in. She applied to the authority for re-housing on the grounds of domestic violence. In August 2001, she returned the keys to the house to the authority with a note saying that she was giving up the tenancy. The Council provided her with alternative accommodation. The authority visited the house and found that most of the fixtures had been removed and that it would take £15,000 to make it habitable.
In November 2001, the applicant returned to the house and carried out renovation works to it. In January 2002, he applied to the authority for a mutual exchange with another tenant of the authority because the house was larger than he required. His relationship with his wife improved and she supported that application. The authority
realised that the house was no longer empty. An officer visited the wife and asked her to sign a notice to quit. She was not advised as to the effect of the notice to quit and a week later she wrote to the authority asking to withdraw it. The authority told the applicant that the tenancy had come to an end and that he had to leave. Subsequently, they also decided that under their domestic violence policy the applicant would not be granted a new tenancy of the house.
In October 2002, the authority brought possession proceedings against the applicant in the county court. The county court judge dismissed the claim on the ground that a possession order would interfere with the defendant’s right to respect for the home under Art.8(1) and that the interference was not justified under Art.8(2).
The authority’s appeal to the Court of Appeal was adjourned pending the outcome of the House of Lords appeal in Qazi v Harrow LBC [2003] UKHL 43; [2004] 1 A.C. 983; [2003] H.L.R. 75. Following that decision, the authority’s appeal was allowed: [2003] EWCA Civ 1783; [2004] H.L.R. 27.
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The applicant applied for judicial review of the authority’s decision to procure a notice to quit from his wife and to issue possession proceedings. In September 2004, that claim was dismissed. The applicant was evicted in March 2005.
The applicant applied to the European Court of Human Rights alleging violations of Arts 6 (right to a fair trial), 8 (right to respect for the home) and 14 (prohibition on discrimination).
European Court of Human Rights
Art.6
The ECHR rejected the application under Art.6 because there was no complaint against the fairness of the court proceedings [30].
Art.14
It also rejected the arguments based on Art.14. The applicant sought to compare his position with that of spouses of tenants who leave premises because of a relationship breakdown where there is no allegation of domestic violence and alleged discrimination because the authority had different policies depending upon the incidence of domestic violence. It was held that there could be no real comparison between cases involving domestic violence and cases that do not involve domestic violence such that different treatment cannot be discriminatory for the purposes of Art.14: [36].
Art.8
The UK government accepted that the house continued to be the applicant’s home notwithstanding that he had no right under domestic law to continue in occupation. The ECHR agreed with that analysis: [46]. It was also accepted that the effect of the notice to quit together with the possession proceedings was to interfere with the applicant’s right to respect for his home. The issue was therefore whether that interference was justified.
The ECHR held that the interference pursued the legitimate aim of protecting the rights and freedoms of the authority to regain possession of the property and ensuring that the statutory scheme for provision of housing was properly applied. The question was whether the interference was proportionate and thus necessary in a democratic society: [48].
In analysing proportionality, the ECHR relied on the principles set out in Connors v UK [2004] H.L.R. 52, ECHR. In that case, the applicant was a gypsy occupying a local authority caravan site. Following allegations of anti-social behaviour, the authority evicted him using a summary possession procedure which did not require them to prove the allegations. The ECHR upheld the applicant’s complaint of a breach of art.8 and held that the applicant’s eviction had not been attended by the necessary procedural safeguards, namely the requirement to establish proper justification for it.
The ECHR rejected the Government’s argument that the reasoning in Connors was to be confined only to cases involving the eviction of gypsies or cases where the applicant sought to challenge the law itself rather than its application in his particular case. “The loss of one’s home is a most extreme form of interference with the right to respect for the home. Any person at risk of an interference of this magnitude should in principle be able to have the proportionality of the measure determined by an independent tribunal in the light of the relevant principles under Article 8 of the Convention, notwithstanding that, under domestic law, his right of occupation has come to an end”: [50].
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The ECHR also found that the procedural safeguards required by Art.8 for assessment of the proportionality of the interference were not met by the possibility of judicial review because the judicial review proceedings “did not provide any opportunity for an independent tribunal to examine whether the applicant’s loss of his home was proportionate … to the legitimate aims pursued”: [53].
It was also emphasised that it was immaterial whether or not the applicant’s wife understood or intended the effects of the notice to quit. The application was allowed: [55].
“Under the summary procedure available to the landlord where one joint tenant serves a notice to quit, the applicant was dispossessed of his home without any possibility to have the proportionality of the measure determined by an independent tribunal. It follows that, because of the lack of adequate procedural safeguards, there has been a violation of Article 8 of the Convention in the instant case.”
Comment
In argument, the government emphasised that it was clear that an individual in the applicant’s position would now benefit from the decision of the House of Lords in Kay v Lambeth LBC [2006] UKHL 10; [2006] 2 A.C. 465; [2006] H.L.R. 22. In Kay, Lord Hope, in a paragraph in a paragraph with which the majority of the Committee agreed, said at [110]:
“[i]f the requirements of the law have been established and the right to possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with Art.8, the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one of two ways: (i) by giving effect to the law, so far as is possible for it to do so under s.3, 1998 Act, in a way that is compatible with Art.8, or (ii) by adjourning the proceedings to enable the incompatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of their powers at common law on the ground that it was a decision which no reasonable person would consider justifiable, he should be permitted to do this provided again that the point is seriously arguable.”
Clearly, however, the ECHR envisages that a defendant should be able not only to raise a defence based on traditional judicial review grounds but also one based solely on proportionality. The ECHR expressed the view that this would not have “serious consequences for the functioning of the system of for the domestic law of landlord and tenant”. Referring to the views expressed by the minority of the House of Lords in Kay, it considered that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which would require a court to examine the issue; in the great majority of cases, an order for possession could continue to be made in summary proceedings: [54]. Indeed, in considering compensation for the applicant, the ECHR observed that “it is far from clear that, had a
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domestic tribunal been in a position to assess the proportionality of the eviction, the possession order would not still have been granted”: [59].
Plainly, the House of Lords will have to address the application of Art.8 to possession proceedings once more and, indeed, have the opportunity to do so in the forthcoming appeal in Doherty v Birmingham CC.

__________________The real evil is not the payment of money, but the secrecy attending it (Chitty L.J. in the case of Shipway v Broadwood [1899] 1 QB 369, 373). .

The courts shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner

Moneylending transactions as a class give rise to significant social problems.

__________________The real evil is not the payment of money, but the secrecy attending it (Chitty L.J. in the case of Shipway v Broadwood [1899] 1 QB 369, 373). .

The courts shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner

Moneylending transactions as a class give rise to significant social problems.